confidentiality and privilege of peer review information

Journal of Law and Health Journal of Law and Health

Volume 7 Issue 2 Article 4

1993

Confidentiality and Privilege of Peer Review Information: More Confidentiality and Privilege of Peer Review Information: More

Imagined Than Real Imagined Than Real

Susan O. Scheutzow

Sylvia Lynn Gillis

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Recommended Citation Recommended Citation Susan O. Scheutzow & Sylvia Lynn Gillis, Confidentiality and Privilege of Peer Review Information: More Imagined Than Real, 7 J.L. & Health 169 (1992-1993)

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CONFIDENTIALITY AND PRIVILEGE OF PEER REVIEWINFORMATION: MORE IMAGINED THAN REAL

SUSAN 0. SCHEUTZOW1

SYLVIA Lynn GILLIS2

I. INTRODUCTION .................................... 169II. PEER REVIEW ..................................... 172

Ill. PEER REVIEW IMMUNITY ............................. 175IV. PEER REVIEW PRIVILEGE ............................. 179

A . Privileges .................................... 179B. Peer Review Privilege .......................... 181C. Federal Peer Review Privilege .................... 182D. State Peer Review Privileges ..................... 186

1. Health Care Entity Proceedings GrantedProtection ................................ 186

2. Scope of Privilege .......................... 188a. Civil Actions ............................ 188b. Criminal Actions ......................... 189c. Administrative Actions .................... 190

3. W aiver ................................... 190V. CONFIDENTIALITY ................................... 192

A . State Law .................................... 193B. Federal Law .................................. 195

VI. MAXIMIZING WHAT LIMITED PEER REVIEW PROTECTION

EXISTS .......................................... 196

1. INTRODUCTION

Peer review of health care professionals has become a standard process inhospitals and many other health care facilities. State legislatures haveencouraged good faith peer review in three major ways: by providing

1 Partner, Bricker & Eckler, Cleveland, Ohio. B.A., Kent State University 1975; M.A.Political Science, The Ohio State University 1977; J.D. (cum laude), Capital UniversityLaw School 1982.

2 Associate, Bricker & Eckler, Columbus, Ohio. B.A. (magna cum laude), NorthernArizona University 1975; M.A., University of Washington 1980; J.D. (with honors), TheOhio State University College of Law 1989.

JOURNAL OF LAW AND HEALTH

immunity from damages to peer review participants; by making peer reviewinformation privileged and thus not admissible in certain judicial and/oradministrative proceedings; and by requiring that peer review participantskeep information regarding the peer review process confidential.

These legal protections of the peer review process-immunity, privilege andconfidentiality-while related, are distinct concepts. Quite obviously healthcare professionals will be reluctant to participate in the peer review process ifthey later may find themselves subject to damages for their participation.Therefore, the granting of immunity from damages to peer review participantsis one of the most important ways of encouraging effective peer review.Congress passed the Health Care Quality Improvement Act of 19863("HCQIA") with the express purpose of promoting peer review by limitingpotential liability of the participants. 4 Most states have enacted similarimmunity provisions. 5 Immunity granted to peer review participants by

342 U.S.C.A. §§ 11101, 11111-11152 (West Supp. 1993). The HCQIA providesstandards forprofessional review activities. For example, professional review action, asdefined in the Act, must be taken "in the reasonable belief that the action was in thefurtherance of quality health care" and "after a reasonable effort to obtain the facts ofthe matter." 42 U.S.C.A. § 11112(a). Theother HCQIA standards are discussed in SectionII. The Act provides that professional review actions will bepresumed to have met thesestandards unless the presumption is rebutted by a preponderance of the evidence. TheAct further identifies certain requirements necessary to meet the adequate notice andhearing standard. These requirements govern the types of notice that must be given theaffected physician and the conduct of the hearing.

4 1f the HCQIA standards are met, certain immunities from damages are available.In addition, if a hospital or other health care entity covered by the Act follows theadequate notice and fair hearing procedures outlined in the Act, court review shouldbe limited to whether the affected physician received these protections. If the courtdetermines that the standards have been met, the case should be dismissed with respectto those covered by the Act.

5 For a general discussion of state peer review statutes, see B. Abbott Goldberg, ThePeer Review Privilege: A Law in Search of a Valid Policy, 10 AM. J.L. & MED. 151, 154 (1984);Note, Medical Peer Review Protection in the Health Care Industry, 52 TEMP. L.Q. 552, 558(1979); Note, Restructuring Hospital-Physician Relations: Patient Care Quality Depends onthe Health of Hospital Peer Review, 51 U. PRTT. L. REV. 1025, 1033 (1990) ("At present thisfear is uncomfortably realistic.") (citations omitted).

Many states specifically identify the bases for enactment of the peer reviewprotections: Arkansas, comment to subchapter 5 ("it is essential to the proper andeffective operations of [peer review] committees that immunity be granted members ofsuch committees for acts of the members performed within the scope of the functionsof the committee and without malice and fraud"); Hawaii, HAw. REV. STAT. § 671D-2("purposeof this chapter is to provide incentives and protection for physicians engagingin effective professional peer review"); Tennessee, TENN. CODE ANN. § 63-6-219(a)(1) ("Itis the stated policy of Tennessee to encourage committees made up of Tennessee'slicensed physicians to candidly, conscientiously, and objectively evaluate and reviewtheir peers' professional conduct, competence, and ability to practice medicine.Tennessee further recognizes that confidentiality is essential to both effectivefunctioning of these peer review committees and to continued improvement in the careand treatment of patients.")

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PEER REVIEW INFORMATION

federal and state law has been commented upon widely6 and generally isoutside the scope of this article.

Despite the immunity for participation in peer review proceedings, healthcare professionals may still be reluctant to participate in the peer review processif they fear information regarding the process may later be admitted into ajudicial or administrative proceeding. They may also be concerned that theymay be called upon to testify against their colleagues or that the informationregarding the proceedings and their role in such proceedings may otherwisebe revealed to third parties. While there appears to be widespread belief thatinformation presented in peer review proceedings and the deliberation of suchcommittees are privileged and are to remain confidential, the reality is that peerreview proceedings are afforded very little privilege and confidentialityprotection pursuant to federal law and very inconsistent protection by statelaw. Most states have a peer review privilege statute, yet many of these statutessignificantly limit the applicability of the privilege and permit the informationto be released in judicial and administrative proceedings. There is similarlylittle protection of peer review information and the attendant privileges,immunities, or confidentiality of such information pursuant to federal law.7

Many state laws provide that peer review information is to remainconfidential. However, only a very few states give any guidance as to how thisconfidentiality protection is to be interpreted or provide any sanctions forviolation of these confidentiality requirements.8 Without sanctions forviolation of the confidentiality provisions, the protection granted may berendered almost meaningless. Similar to the law on privileges, federal lawoffers little confidentiality protection to peer review records. 9

6 See note 3, supra; see also James T. Hicks, Uncertainty and Unpredictability inApplication of Peer Review Privilege Statutes, 24 J. HEALTH & HosP. L 137 (1991); CharityScott, Medical Peer Review, Antitrust, and the Effect of Statutory Reform, 50 MD. L. REV. 316(1991); Comment, The Medical Review Committee Privilege: A Jurisdictional Survey, 67N.C.L. REV. 179 (1988); Reed E. Hall, Hospital Committee Proceeding Reports: Their LegalStatus, 1 AM. J.L. & MED. 245 (1975).

7 The only federal statute that makes specific provision for peer review activities isthe HCQIA. This Act does not create a privilege per se, although it does give someprotections to good faith reporting of information in the context of peer review actionsif the requirements identified in the Act have been met. The Act does make someprovisions for confidentiality, as discussed in Section W(C), of the information requiredto be reported under the Act, but this information does not include by definition anyinformation related during a professional review action.

8 For example, Texas makes the unauthorized and unlawful disclosure ofconfidential peer review information by the state board of registration a Class Amisdemeanor. TEX. REV. CIv. STAT. ANN. art. 4495b, § 5.06(s)(4). Rhode Island imposesboth civil and criminal penalties. R.I. GEN. LAWS § 5-37.3-9. New Mexico classifies aviolation of its peer review statute as a petty misdemeanor and provides for a minimalfine ($100) and/or imprisonment not to exceed 6 months. N.M. STAT. ANN. § 41-9-6.

9Again, the HCQIA mandates that certain types of information be reported to theNational Practitioner Data Bank ("NPDB"), which was created as a result of the HCQIA.The types of information that must be reported are described in Section IV(C).

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This article will discuss the status of the privileges and confidentialityprotection today at both the state and federal level. It will also address theconcerns present among those individuals and organizations participating inpeer review regarding the law of privileges and confidentiality and offersuggestions for health care providers to take full advantage of the statutoryprotections.

I. PEER REVIEW

"Peer review." The phrase conjures up general images of physicians andhospital staff members meeting to review and discuss the quality of carerendered on an on-going basis in a hospital or other health care setting. Morespecifically, it includes the review of individual physicians and other healthcare professionals appointed to the medical staff of a hospital or other healthcare organization when there are quality of care concerns with respect to thehealth care services provided by that individual.

In reality, what is encompassed within peer review activities that will fallwithin the statutory peer review protections varies widely from state to state.Some states specifically define the functions that are protected; others broadlyapply to "peer review" or "medical review" committees. Within thesedefinitions of peer review activities, peer review may encompass the initialreview and decision-making process with respect to medical staff appointmentand reappointment and the delineation of clinical privileges, both with respectto initial appointments and requests for modifications or expansion of clinicalprivileges at other times. Whether or not this function falls within the statutorydefinition, peer review in the form of utilization review and quality assessmentand improvement activities is an important element of the continualmonitoring and assessment of quality of care in hospitals and other health care

The HCQIA provides that these reports are to be confidential and are not to bedisclosed,except "with respect to [certain] professional review activity" identified in theAct. The Act also provides that any disclosure authorized by state law will not beprevented by the Act. If information is reported in a manner that does not allow theidentification of the physician, patient, any other health care practitioner, or the healthcare entity, that information will not be considered confidential and may be disclosed.Although at this time, this information is, under most circumstances, available only tolicensing boards and certain health care entities, such as hospitals and other entities thatprovide health care services and that follow formal peer review processes, there arecontinuing efforts to have the information in the Data Bank more widely available tothe public.

One option proposed by the Clinton administration as part of its reform plan islimited access to the NPDB by consumers that would allow consumers to discover if apractitioner is a "repeat offender." Such efforts are strongly opposed by organizedmedicine, but consumergroups are becoming more active and wider access may result.See Linda Oberman, Data Bank Access Debate: Any middle ground? AMERICAN MEDICALNEWS, Jan. 3, 1994, pp. 3-4.

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facilities, including professional associations.10 It is required by the JointCommission on Accreditation of Healthcare Organizations ("JCAHO") and theAmerican Osteopathic Association ("AOA"), both of which are private bodiesby which hospitals and other health care organizations may receiveaccreditation which is also useful for federal certification for Medicare and statelicensing purposes."

As noted above, the peer review process is performed in large part by healthcare professionals who are appointees to a health care organization's medicalstaff. Underlying peer review is the responsibility of a health care facility, whichcan be imposed by law or accreditation agency or be self-imposed, to permitonly competent, capable persons to engage in the practice of medicine or theprovision of other health care services at the health care facility. Since the boardand administration of individual health care facilities generally are comprisedof persons who are not thought to be qualified to evaluate the quality of medical

10 Beca use the majority of peer review is performed at the hospital level, thecomments in this article will be generally addressed to hospital-based peer review.However, the discussion will be applicable to peer review in other health care settingsas well. The same analysis may also be useful when examining privilege, confidentiality,and immunity issues in the context of peer review in other fields.

1lToday'sJCAHO grows out of the Joint Commission on Accreditation of Hospitals,which was founded in 1952. Although not a government entity, JCAHO accreditationis sought by health care organizations because organizations who are accredited byJCAHO are deemed eligible to participate in the Medicare program. Over the years,compliance with JCAHO standards has become an accepted method of achievingaccreditation for the majority of hospitals in the United States.

The JCAHO standards, which are published annually in the organization'sAccreditation Manual for Hospitals, specifically require the development andimplementation of mechanisms to assure "the uniform performance of patient careprocesses throughout the organm~zation." JCAHO Standard, LD.1.6 (1994) (theequivalent of this standard was formerly found in the Governing Board Standards atGB.1.16.1 ("The governing body requires mechanisms to assure that all patients withthe same health problem are receiving the same level of care in the hospital." GB.1.16.1(1993)). The 1994 Standards have significantly reorganized the standards and regroupedsome of the medical staff and governing board requirements from prior years within anew section titled "Improving Organizational Performance." Also included in this newsection are many of the standards found in the Quality Assessment and Improvementsection of the 1993 Accreditation Manual for Hospitals. The first standard within this newsection requires "tihe organization [to have] a planned, systematic, organizationwideapproach to designing, measuring, assessing, and improving its performance." JCAHOStandard, PI.1 (1994).

The AOA also has an accreditation program for health care facilities and annuallypublishes standards by which it conducts surveys of health care facilities. The AOA'sprogram has also been granted "deemed" status to conduct surveys of health carefacilities for compliance with Health Care Financing Administration requirements. TheAOA standards similarly require review of practitioners' competence to performservices for which they have been granted privileges and the maintenance of a high levelof professional competence and knowledge.

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and other health care services provided at the facility, this task is delegated tothe health care professionals practicing at each health care facility.' 2

Depending upon the size of the health care organization, the individualsperforming peer review and the person reviewed may work together on a dailybasis and may even practice in the same specialty. Concerns on the part of thehealth care professionals participating in the peer review process with thenature and discoverability of peer review proceedings and informationgenerated within those proceedings, as well as immunities from suit andtestimonial privileges, are evident. Equally important, however, are theconcerns of the health care organization itself with the confidentiality of theinformation generated within the peer review process and availableimmunities from suit and damages for its participation in and conducting ofthe process.

Peer review information may have many uses outside of the hospitalcredentialling process. Information presented to peer review committees andthe deliberations of such committees may be useful to plaintiffs and defendantsin malpractice lawsuits. It could also prove useful to third party payers inmaking payment decisions and in determining which providers mayparticipate on select provider panels. News media, consumer groups, andcompetitor health care providers may all be very interested in peer reviewinformation for a variety of reasons.

In contrast, participants in the peer review process may be reluctant toparticipate or to be totally open in such proceedings if they believe they maybe later called into court to testify or if their comments and role in the processmay later be revealed to third parties. While a physician may be willing tochastise a physician in private and, for example, suggest sanctions such asremedial training, the physician almost assuredly would not like his commentsaired on the six o'clock news.

In the absence of law to the contrary, parties may obtain discovery regardingany matter not privileged.13 Similarly, absent law or agreement to the contrary,no person is required to keep any information confidential. Therefore, withoutspecific provisions of law, peer review information would be subject todiscovery, and there would be no requirement that peer review participantskeep the information confidential. Even agreements to keep peer review

12 State peer review statutes provide protection to a variety of persons serving asmembers of peer review committees or otherwise providing service to the committee.Most broadly, committee members, consisting of both health care professionals andhospital staff and administration employees, together with consultants hired to assistin the evaluation process, and any other persons involved and providing services, suchas legal counsel, are protected. See, e.g., ALASKA STAT. § 18.23.020. In the leastprotectivestates, only health care professionals (i.e., physicians in most cases) are afforded thestatutory protections. See, e.g., Mo. REV. STAT. § 537.035(2). Some states describe therequired composition of peer review committees. See, e.g., IND. CODE ANN. §34-4-12.6-1(c)(2).

13 See, e.g., OHIO R. Civ. P. 26(b)(1).

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information confidential would be ineffective in preventing its disclosurepursuant to legal process. 14

To encourage open peer review, the overwhelming majority of statelegislatures 15 have adopted statutory protections for the peer review process. 16

The nature of these statutory protections varies from state to state. Theprotections take the following forms: providing immunity from suit ordamages for those individuals participating in the peer review process;granting a privilege from discovery or admission into evidence to peer reviewinformation; and providing that peer review information is to remainconfidential.

II. PEER REVIEW IMMuNITY

While this article does not provide an analysis of the various state lawsregarding immunity as this is adequately covered in other writings, 17 somediscussion of such laws and the HCQIA is necessary to understand theprivilege and confidentiality protections afforded the peer review process bythe states.

For example, when an individual applies for medical staff appointment at ahealth care organization and is denied appointment or granted a conditionalappointment with fewer clinical privileges than requested or granted restrictedprivileges, that individual may initiate a lawsuit against the health careorganization and/or participants on the committees that considered theapplication and made recommendations for the denial of appointment or thegranting of limited or restricted clinical privileges. Similarly, an appointee tothe health care organization's medical staff may file a lawsuit when the

14 For example, medical staff bylaws should impose confidentiality requirementsupon medical staff appointees serving on peer review committees. In addition, anyconsultant retained to assist in the review process should by agreement be bound tosimilar confidentiality provisions. However, these agreements would be ineffectiveshould a court order disclosure of information that is not made confidential or privilegedby law.

15Apparently, Oklahoma is the only state that has not adopted a peer review statute.Oklahoma has enacted a Hospital and Medical Services Utilization Review Act, OKLA.STAT. tit. 36, §§ 6551 to 6561, which provides for utilization review for insurancepurposes.

16 See Dorothy Rasinski Gregory, Immunity for Physicians in Peer-Review Committees,MED. TR. TECH. Q, pp. 193-202 (1985) ("the law quickly realized that without somedegree of confidentiality of peer-review documents and proceedings, total candor couldnot be guaranteed" (id. at 194)). The author voiced the common concern held by healthcare professionals that "[mlembers of the medical profession cannot be expected toinitiate or willingly participate in peer-review investigations if their testimony andreports may be subjected to discovery in subsequent civil litigation involving issues farbeyond the area of the committee's actions." Id. at 196.

The first state legislature to adopt legislation creating a peer review privilege wasIllinois in 1961. See Goldberg, supra note 5, at 152.

17See, e.g., supra notes 5 and 6.

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appointee's privileges or appointment is terminated or restricted as a result ofan investigation arising out of quality of care concerns that are the subject ofinternal peer review proceedings. Such lawsuits may be brought at the state orfederal level 18 and can allege causes of action including defamation, tortiousinterference with a business relationship, and antitrust. The fear of becomingembroiled in lawsuits as a result of candid discussion within the peer reviewprocess is recognized as a deterrent to effective peer review.19

As alluded previously, the immunities provided for peer review informationand participants vary among the states, ranging from no immunities toindividuals and entities participating in peer review activities to the grant ofimmunity from damages and/or suit to members of certain committeesidentified in the state statute that perform peer review functions20 when actingon behalf of the committee within the scope of its authority. In addition, anyimmunities granted are narrowly construed according to the terms of the

18As will be discussed later in this article, whether a lawsuit is brought in state orfederal courts determines the availability of privileges, which may be recognized understate law, but may not be similarly recognized under federal law.

19See Restructuring Hospital-Physician Relations, supra note 5. In that note, theauthor states that "[tlhe most serious obstacle to effective peer review is the potentialfear felt by the reviewer that participation in an adverse recommendation will lead to alawsuit against him or her personally," id. at 1033, and cites an article appearing in theAugust 20, 1984 issue of Medical Economics titled Peer Review: Is Testifying Worth theHassle? and a statement by Representative David Waxman appearing in theCongressional Record that "[alt the hearing [held for debate over barriers to peerreview], nearly every witness indicated that the threat of litigation under current law isa major barrier to effective peer review." 132 CONG. REC. Hi1588 (daily ed. Oct. 17,1986).These congressional proceedings preceded the enactment of the HCQIA at the federallevel. See also Note, The Health Care Quality Improvement Act of 1986: Will Physicians FindPeer Review More Inviting?, 74 VA. L. REV. 1115, 1119 (1988) ("One fear of physicians isinvolvement in litigation either in the form of a suit filed by a physician who has beendenied staff privileges or a malpractice suit filed by a patient of the physician underreview.")

See also Scott, supra note 6, at 327 ("Whether the belief is justified or not, manyphysicians believe that to serve in any peer-review capacity is necessarily to risk beingnamed in a lawsuit.").

But see Scott supra note 6, at 327 n.42, citing Health Care Quality Improvement Act of1986: Hearings on H.R. 5540 BRebre the Subcomnm. on Civil and Constitutional Rights of theHouse Comni. on the Judiciary, 99th Cong., 2d Sess. 52 (1986), at pp. 96-99, 121-23 (noevidence that legisla tion is needed), and 132 CONG. REC. H9961 (daily ed. Oct. 14, 1986)(statement by Rep. Edwards that "peer review participants' fear of damage claims isunfounded.... The view of several witnesses was, 'if it ain't broke, don't fix it."). Thecited references suggest, "[allthough there was considerable testimony about the chillingeffect that litigation was thought to have on peer review,.., some vigorously disputedboth the fact of and the basis for such deterrence."

20 See OHIO REV. CODE § 2305.25 and § 2305.28, both of which grant immunity fromdamages to persons acting within the scope of certain committees identified in thestatutes. Cf. this language to that contained in the HCQIA, which does not specificallygrant immunities from suit, but does limit damages with respect to professional reviewactions when these actions meet the standards listed in the Act.

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statutory grant. No immunity is given to individuals who are not identified inthe statute or who serve on committees that are not included on the statutorylist. For example, if the statute reads that certain individuals performing certainfunctions will be immune from damages, but not immune from suit, courts willstrictly interpret the statute to provide immunity only from damages, but notfrom any other actions. 21 Similarly, the immunity from damages does not givepeer review participants immunity from criminal prosecution or othernon-damage actions, such as injunctive or declaratory relief, unless specificallyprovided in the statute. Any immunities granted under state law, as withprivileges and confidentiality, will have no application if a lawsuit is broughtin the federal courts.

Until the enactment of the Health Care Quality Improvement Act of 198622by Congress, peer review in the health care field was governed exclusively bystate legislation. The HCQIA, the only federal legislation on the subject, wasenacted specifically to encourage peer review by physicians. 23 The HCQIArepresented the federal Congress' finding that "It]here is an overriding nationalneed to provide incentive and protection for physicians engaging in effectiveprofessional peer review.' 24 Congress further found that "[tihe threat of privatemoney damage liability under Federal laws, including treble damage liabilityunder Federal antitrust law, unreasonably discourages physicians fromparticipating in effective professional peer review.' 25

The protections actually provided by the HCQIA are limited, as courtsapplying the Act have found.26 The plain words of the Act limit the immunity

2 1See Decker v. IHC Hospitals, Inc., 982 F.2d 433 (10th Cir. 1992), cert. denied 113 S.Ct. 3041 (1993) (federal court found that state statute (Utah Medical Practice Act)provided protection from damages only, not immunity from suit, for participation inpeer review activities).

2242 U.S.C.A. § 11101, 11111-11152 (West Supp. 1993).23 For a discussion of the HCQIA, see Kathleen L. Blaner, Physician, Heal Thyself.

Because the Cure, The Health Care Quality Improvement Act, May be Worse than the Disease,37 CATH. U.L. REv 1073 (1988); The Health Care Quality Improvement Act of 1986, supra,note 19.

2442 U.S.C.A. § 11101(5).

2542 U.S.C.A. § 11101(4).26The HCQIA provides immunities from damages, but some courts have found that

it does not provide immunity from suit. While physicians who participate in peer reviewactivities that fall within the protections of the HCQIA will undoubtedly be dismissedfrom a lawsuit brought against them at an early stage in the litigation, the act does notexplicitly provide them with immunity from suit. See Decker, 982 F.2d 433 (neither theUtah Medical Practice Act nor the HCQIA provided immunity from suit; the actsprovided protection "only from damages arising from participation in private actions,and only for proper peer review") Id. at 437; Austin v. McNamara, 979 F.2d 728 (9th Cir.1992) (court of appeals upheld district court's granting of summary judgment againstphysician participant in peer review proceedings when it determined peer reviewerscomplied with HCQIA due process requirements); Smith v. Ricks, 798 F. Supp. 605 (N.D.Cal. 1992) (plaintiff failed to overcome the presumption of immunity for denial of

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from damages to those individuals who participate and provide informationto professional review bodies "unless such information is false and the personproviding it knew that such information was false."27 Professional reviewbodies, persons who act as a member of the professional review body, personsacting under a formal agreement or contract with the professional review body,and any other person who participates and/or assists the professional reviewbody with the action is also granted immunity from civil damages. 28

The HCQIA also provides standards for professional review actions thatmust be met before the peer review body or individuals described in the Actwill be entitled to the immunities from damages provided in the Act. To qualifyfor the protections of the Act, the following conditions must be met:

[a] professional review action must be taken-(1) in the reasonable belief that the action was in the furtherance

of quality health care,(2) after a reasonable effort to obtain the facts of the matter,(3) after adequate notice and hearing procedures are afforded

to the physician involved or after such other procedures asare fair to the physician under the circumstances, 29 and

(4) in the reasonable belief that the action was warranted by thefacts known after such reasonable effort to obtain facts andafter meeting the requirement of paragraph (3).30

The HCQIA provides a basis against which effective peer review can bemeasured when professional review actions have the adverse effect of

privileges afforded by the HCQIA). See also Manion v. Evans, 986 F.2d 1036 (6th Cir.),cert. denied, 114 S. Ct. 71 (1993) (HCQIA provides immunity to physician and hospitalsparticipating in peer review activities from liability for damages in civil actions; it doesnot immunize physicians and hospitals from suit as a result of their participation in peerreview activities).

2742 U.S.C.A. § 11111(a)(2).

2842 U.S.C.A. § 11111(a)(1).29Section 11112(b) of the Act details the requirements that must be fulfilled for a

health care entity to bedeemed to have met the adequate notice and hearing requirementof Section 11112(a)(3). These requirements include notice to the affected physician of theproposed action, which must include the reasons for the proposed action, inform thephysician that he/she has the right to request a hearing on theproposed action (the timewithin which to request such a hearing cannot be limited to less than 30 days), and asummary of the hearing rights available to the physician. 42 U.S.C.A. § 11112(b)(1). Thenotice of proposed action must be followed by a notice of hearing when the physicianrequests a hearing within the time provided in the notice of proposed action. The noticeof hearing must contain the place, time, and date of the hearing, a date not less than 30days after the date of the notice, and a list of witnesses expected to testify on behalf ofthe professional review body. 42 U.S.C.A. § 11112(b)(2). These hearing rights includethe right to be represented by counsel or another person of choice, to call, examine, andcross-examine witnesses, to present evidence, and to submit a written statement at theclose of the hearing. 42 U.S.C.A. § 11112(b)(3).

301d. § 11112(a).

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"reducing, restricting, suspending, revoking, denying, or failing to renewclinical privileges or membership in a health care entity."31 Professional reviewactions are limited to those actions taken or made in the conduct of professionalreview activity that is "based on the competence or professional conduct of anindividual physician (which conductaffects or could affect adversely the healthor welfare of a patient or patients) and which affects (or may affect) adverselythe clinical privileges, or membership in a professional society, of thephysician."32 While the HCQIA may do no more than provide a frameworkwithin which peer review should be conducted, that alone is a step in the rightdirection for effective peer review.

IV. PEER REVIEW PRIVILEGE

The peer review privilege has developed as an "institutional privilege"-aprivilege which protects the institution and participants and not necessarilythe person being subjected to peer review. Courts have been reluctant to adopta common law peer review privilege and so the privilege if it exists at all flowsfrom statutory enactment. The statutes which exist are not consistent and donot seem to address adequately the underlying reason for the privilege.

A. Privileges

"Privilege" in the law is the right to keep certain information from being usedin evidence. The recognition of a privilege with respect to communicationsbetween parties or with respect to an institution's self-examination of itsactivities represents "an exception to the general liability of every person to givetestimony upon all facts inquired of in a court of justice."33 At common law noprivilege is created by the "mere fact that a communication was made in expressconfidence, or in the implied confidence of a confidential relation."34 Wigmore,one of the foremost authorities on privileges, delineated four conditionsnecessary before a privilege against the disclosure of certain communicationsand information may be established.

(1) The communications must originate in a confidence that theywill not be disclosed.

(2) This element of confidentiality must be essential to the full andsatisfactory maintenance of the relation between the parties.

(3) The relation must be one which in the opinion of thecommunity ought to be sedulously fostered.

311Id. § 11151 (1).

32Id. § 11151(9).

338 Wigmore, Evidence (McNaughton rev. 1961), 1 2285, p. 527.341d. at 528.

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(4) The injury that would inure to the relation by the disclosureof the communications must be greater than the ben35ftthereby gained for the correct disposal of the litigation.

Courts have been very reluctant to create common law privileges absentstatutory authority and generally strictly construe those privileges that doexist. The United States Supreme Court has continually admonished courts tobe cautious in fashioning privileges. Even in discussing the widely acceptedattorney-client and priest-penitent privileges, the Court has urged caution intheir application:

These and other interests [referring to the privileges held by attorneysand priests] are recognized in law by privileges against forceddisclosure, established in the Constitution, by statute, or at commonlaw. Whatever their origins, "these exceptions to the demand for everyman's evidence are not lightly created nor expansively construed, forthey are in derogation of the search for truth."36

3 5 d. (emphasis in original).3 6 United States v. Nixon, 418 U.S. 683, 710 (1974). The footnote to this portion of the

decision quotes Mr. Justice Frankfurter's dissent in Elkins v. United States, 364 U.S. 206,234 (1960):

Limitations are properly placed upon the operation of this generalprinciple only to the very limited extent that permitting a refusalto testify or excluding relevant evidence has a public good trans-cending the normally predominant principle of utilizing all rationalmeans for ascertaining truth.

See also Trammel v. United States, 445 U.S. 40,50 (1980) ("Testimonial exclusionary rulesand privileges contravene the fundamental principle that 'the public.., has a right toevery man's evidence'....") (citations omitted).

The most recent United States Supreme Court decision to address this issueoccurred in the context of academic peer review proceedings. In University ofPennsylvania v. EEOC, 493 U.S. 182 (1990), the Court was called upon to "fashion a newprivilege [claimed by petitioner to be] necessary to protect the integrity of the peerreview process, which in turn is central to the proper functioning of many colleges anduniversities." Id. a t 189. The Court declined, stating:

We do not create and apply an evidentiary privilege unless it "promotessufficiently important interests to outweigh the need for probativeevidence....

Moreover, although Rule 501 manifests a congressional desire "notto freeze the law of privilege" but rather to provide the courts withflexibility to develop rules of privilege on a case-by-case basis, ....we are disinclined to exercise this authority expansively. We areespecially reluctant to recognize a privilege in an area where it appearsthat Congress has considered the relevant competing concerns but hasnot provided the privilege itself.... The balancing of conflicting interestsof this type is particularly a legislative function.

Id. (citations omitted).

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B. Peer Review Privilege

It is generally accepted that the privilege ascribed to peer review proceedingsdoes not arise from any recognized common law principle,37 but is rather alegislative creation developed to protect facets of peer review proceedings inorder to encourage open and effective peer review.38 The peer review privilegeis one of the privileges characterized as an institutional privilege which protectsconfidentiality of communications not because of the importance to theindividuals involved but due to the importance of the protection to theinstitutions (and indirectly the public) relying upon the privilege.39 Clearly thepeer review privilege was created to encourage peer review and thus protectthe institutions performing peer review and not to protect the individuals whowere subject to review.

Peer review itself is a relatively recent development and stems from thehealth care profession's concern with establishing a minimal standard of carefor health care services provided to the public. 4° Today's tradition ofself-regulation and evaluation within the health care profession flows fromearly attempts by hospitals to regulate the quality of care provided within theirwalls. With the development of the accreditation organizations, such as theJCAHO and AOA's Committee on Hospital Accreditation, and state licensingregulations, the requirements for the peer review process have been imposed

3 7 See The Medical Review Committee Privilege: A Jurisdictional Survey, supra note 6, at189 ("[w]hether medical review records were afforded any privilege at common law isat best uncertain").

3 8 See Section IV(C) infra.3 9 Note, Dcvelopments in the Law: Privileged Communications, 98 HARV, L. REV. 1450,

1592 (1985).

40Formal medical education in the United States did not begin until 1765 when achair was founded at the College of Philadelphia. Note, Medical Peer Review Protectionin the Health Care Industry, 52 TEMP. L.Q. 552, 554 (1979). Hospitals at that time weregenerally not-for-profit private institutions and frequently developed out ofalmshouses. Minimal standards for medical graduates were set by the AmericanMedical Association when it was established in 1847 as a means to attempt to establisha minimum level of competence in the profession. Id. Later states adopted regulationsfor the licensing of physicians. Id.

Continuing the movement toward monitoring of physicians by their peers, whichdeveloped out of a concern for the poor quality of health care providers, the AmericanCollege of Surgeons was organized in 1913. Id. Membership in the College was basedon professional qualifications and merit. Id. at 554-55. As one commentator describesthe College, it:

[s]ought to establish standard requirements for hospital quality ofcare.... The standards favored close-staff hospitals, where staffmembership is a privilege conferred solely on merit as determinedby the hospital.... A procedure of medical audit, a form of peerreview, was recommended during this time, but the innovation wasnot instituted until decades later as hospital medical staff standardsand review became more rigorous.

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from outside the health care institution. "The conventional justification for theprivilege is that protecting doctors from testifying against their colleaguespromotes candor during peer review proceedings."4 1

The issue before the courts and legislatures is how to give health careprofessionals the protections and immunities necessary to promote thoroughand effective peer review and at the same time allow certain information fromthe peer review proceedings to be used in a meaningful way.42

C. Federal Peer Review Privilege

Federal Rule of Civil Procedure 26(b)(1) provides that parties may obtaindiscovery regarding any matter not privileged which is relevant to the subjectmatter in the action. Rule 501 of the Federal Rules of Evidence provides thatfor federal civil cases based upon state claims (generally diversity cases) thedetermination of privilege is based upon the state law being applied in thatspecific case. With all other federal cases where federal law is applied, whetheror not communications are privileged is based upon federal statute and if noneexists, by common law as interpreted by the federal courts. There is no federalstatute granting a peer review privilege and therefore whatever peer reviewprivilege protection there is falls to the federal courts to fashion. The federalcourts, however, have been reluctant to adopt common law privileges ingeneral, even rejecting a physician-patient privilege in federal cases.43 Likewisethe federal courts have been reluctant to adopt a common law peer reviewprivilege, although this is not absolute.

In Bredice v. Doctors Hospital, Inc.,44 the most widely cited case for adoptinga federal peer review privilege, the United States District Court for the Districtof Columbia denied discovery in a malpractice case of reports made to hospitalcommittees on the grounds that, absent extraordinary circumstances, a hospitalis entitled to a qualified privilege of information submitted to committeesformed pursuant to JCAHO guidelines for the "sole objective" of improvingavailable care and treatment for its patients. 45 Despite the holding in Bredice,

41 See, e.g., Goldberg, supra note 5, at 154.42 See Scott, supra note 6, at 319 ("We ought to give immunity to doctors to participate

in peer review in order to encourage that peer review, but we have to protect the publicby making the information available from peer review to an institution so thatinformation will be used in a meaningful way.").

43 See, e.g., In re Zuniga, 714 F.2d 632 (6th Cir. 1983), cert. denied, 464 U.S. 983 (1983);United States v. Meagher, 531 F.2d 752 (5th Cir. 1976), cert. denied, 429 U.S. 853 (1976).

4450 F.R.D. 249 (D.D.C. 1970), affd mern. 479 F.2d 920 (D.C. Cir. 1973).45Accord Laws v. Georgetown Univ. Hosp., Inc., 656 F. Supp. 824 (D.D.C. 1987);

Gillman v. United States, 53 F.R.D. 316 (S.D.N.Y. 1971); Robinson v. Magovem, 83 F.R.D.79 (W.D. Pa. 1979).

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most federal courts addressing the issue have refused to adopt a common lawpeer review privilege. 46

While the U.S. Supreme Court has not yet addressed the issue of a federalhealth care peer review privilege, the Court recently addressed the issue of peerreview in the academic setting and refused to recognize a common lawprivilege against disclosure of confidential peer review information:

We do not. create and apply an evidentiary privilege unless it"promotes sufficiently important interests to outweigh the need forprobative evidence .... Inasmuch as "[t]estimonial exclusionary rulesand privileges contravene the fundamental principle that 'the public... has a right to every man's evidence,.. . any such privilege must bestrictly construed."' 4(citations omitted).

It is unlikely that the United States Supreme Court, if faced with the issue ofhealth care peer review would hold differently.

While there is little support for a federal peer review privilege at commonlaw, neither is there a statutory basis for a medical peer review privilege infederal law. The HCQIA statutorily granted antitrust immunity to medical peerreview participants when the review conforms to the standards of the Act. TheHCQIA, however, did not grant any privilege to the proceedings of peer reviewcommittees. Presumably Congress would have addressed the issue of privilegeif it intended for a privilege to be granted. The Act does provide for the limitedconfidentiality of information reported to hospitals from the NPDB

Information reported under this subchapter is considered confidentialand shall not be disclosed (other than to the physician or practitionerinvolved) except with respect to professional review activity...Nothing in this subsection shall prevent the disclosure of suchinformation by a party which is otherwise authorized, underapplicable State law, to make such disclosure.48

The court in LeMasters v. Christ Hospital,49 held that this portion of the Actprovides for confidentiality of only that information provided to the NPDB anddoes not create any type of peer review privilege.

Another basis for the privilege argued for with respect to peer reviewproceedings is the newly emerging privilege recognized for self-evaluative

46See, e.g., Memorial Hosp. for McHenry County v. Shadur, 664 F.2d 1058 (7th Cir.1981); Pagano v. Oroville Hosp., 145 F.R.D. 683 (E.D. Cal. 1993); Teasdale v. Marin Gen.Hosp., 138 F.R.D. 691 (N.D. Cal. 1991); Wei v. Bodner, 127 F.R.D. 91 (D.NJ. 1989); Quinnv. Kent Gen. Hosp., Inc., 617 F. Supp. 1226 (D. Del. 1985); Dorsten v. Lapeer County Gen.Hosp., 88 F.R.D. 583 (E.D. Mich. 1980).

47University of Pennsylvania, 493 U.S. at 189 (citations omitted).

4842 U.S.C.A. § 11137(b)(1).

49791 F. Supp. 188 (S.D. Ohio 1991).

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processes. As stated above, the Bredice decision is recognized as the first case toallow for a privilege based upon a self-evaluative basis.50 From that beginning,the "general public policy favoring confidentiality for self-criticism has beenexpanded and applied, although by no means uniformly, to protect documentsin other contexts, including police department investigations and academicpeer reviews."51

One commentator has described the purpose for the development of theself-critical analysis privilege as a means "to foster, within a given institution,frank deliberations designed to improve the institution's mission. ' 52 Theprivilege is generally described as a qualified privilege and its application isdetermined on a case-by-case basis. Three factors have been recognized bycourts when determining whether the self-criticism privilege applies. Theseinclude: (1) the document must result from an institution's internalinvestigation conducted to review or evaluate the institution's procedures orproducts; (2) it must have been the intent of the institution that the documentremain confidential and it must remain confidential for the institution tofunction effectively; and (3) "protecting the communication must be in thepublic interest and serve an important public need."53

By far the most common application of the self-critical analysis privilegeoccurs within the context of the academic peer review function. In this contexta qualified privilege for the peer review process conducted by colleges and

50 See Note, Criticizing the Self-Criticism Privilege, 1987 U. ILL. L. REV. 675, 678; Note,Discovery of Affirmative Action Plans, 83 MICH. L. REV. 405, 408 (1984) ("[tlhe self-criticalanalysis privilege was originally invoked to protect a hospital committee's investigatoryreport in Bredice v. Doctors Hospital, a medical malpractice case"); James F. Flanagan,Rejectinga GeneralPrivilegefor Self-CriticalAnalyses, 51 GEO. WASH. L. REV. 551,554(1983);Note, The Privilege of Self-Critical Analysis, 96 HARV. L. REV- 1083 (1983).

51 Discovery of Affirmative Action Plans, supra note 50, at 409 (citations omitted).Courts declining to recognize the self-evaluative privilege: Nazareth Literary &

Benevolent Inst. v. Stephenson, 503 S.W.2d 177,179 (Ky. App. 1973) (court stated that"claims of privilege are carefully scrutinized and impediments to the discovery of truthare afforded validity in relatively few instances"); Shibilski v. St. Joseph's Hosp., 266N.W.2d 264 (Wis. 1978) (court would not judicially recognize a self-criticism privilegeon the basis that only the legislature can create a privilege).

52 Note, Making Sense of Rules of Privilege Under the Structural (Il)logic of the FederalRules of Evidence, 105 HARV. L. REv. 1339, 1351 (1992). See also The Privilege of Self-CriticalAnalysis, supra note 50, at 1083 ("a privilege of self-critical analysis has developed toshield certain institutional self-analyses from discovery").

53Criticizing the Self-Criticism Privilege, supra note 50, at 680. The author notes thatalthough "the practical scope of the privilege remains undefined," id., courts haveconsistently applied it to three types of documents---"committee or peer review reports,corporate internal investigation documents, and affirmative action forms voluntarilyrecorded in compliance with federal equal employment opportunity statutes." Id. at 681(footnote omitted) (further concluding that these documents differ so greatly the court'srecognition of them provides "inadequate precedent for courts to utilize in evaluatingclaims of the privilege"). Id. The author further notes that the application of ProfessorWigmore's conditions for the recognition of a privilege does not support theself-criticism privilege. Id. at 683-84.

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universities when considering promotion and tenure of professors was firstrecognized in 1981.54 In 1983, the Seventh Circuit Court of Appeals recognizeda qualified academic freedom privilege with respect to disclosure of theidentities of individuals participating in the university peer review tenureprocess.55 However, the United States Supreme Court has refused to recognizea common law privilege for peer review materials prepared in connection withsuch promotion and tenure decisions. 56

As in the health care profession, the rationale for the recognition of such aprivilege with respect to academic peer review is based upon the reluctance ofindividuals to participate in the process without assurances of confidentiality.Without the certainty of confidentiality to those individuals participating in thepeer review process, commentators have argued that there will be a failure "tofoster honest, open criticism of faculty members under review. Indeed, theinstitution's fear of possible future litigation might actually facilitate ad hoc,discriminatory employment decisions without full consideration of theapplicant's merits and without benefit of accurate records."57

Corporations have also attempted to use the self-evaluation privilege;however, the success with which such corporations have maintainedconfidentiality of certain internal documents has been founded on otherprivileges-e.g., the attorney-client privilege and attorney work productdoctrine.

While the self-critical privilege has been applied successfully at times in thecontext of academic peer review, it has not met with favor when applied to thepeer review procedures conducted within the health care profession.58Moreover, because the privilege, when recognized, is characterized as a"'qualified" privilege, courts hold that it only protects subjective as opposed tofactual or objective data contained in reports and that the privilege can beovercome if the plaintiff can demonstrate its need for the information

5 4 See Comment, Balancing Academic Freedom and Civil Rights: Toward an AppropriatePrivilege for the Votes of Academic Peer Review Committees, 68 IowA L. REv. 585 (1983). Seealso Recent Development,A Qualified Academic Freedom Privilege in Employment Litigation:Protecting Higher Education or Shielding Discrimination?, 40 VAND. L. Ruv. 1397, 1398(1987).

55 EEOC v. University of Notre Dame Du Lac, 715 F.2d 331,337 (7th Cir. 1983).5 6 University of Pennsylvania, 493 U.S. at 182 (holding that university must respond

to EEOC subpoena for information because the applicable EEOC statute plainlyprovides that the EEOC shall have access to relevant evidence).

57 Recent Development, supra note 54, at 1405-06 (arguing that reliance on judicialdiscretion in determining on a case-by-case basis whether peer review proceedings willbe protected "provides uncertain and therefore unsatisfactory protection for theuniversities' interest in confidentiality").

58 See Morgenstern v. Wilson, 133 F.R.D. 139 (D. Neb. 1990) (interest in enforcingantitrust laws outweighs interest in protecting patients' records and peer reviewcommittee's work); Wei v. Bodner, 127 F.R.D. at 91 (information sought in antitrust suitagainst hospital was not protected by peer review privilege or self-evalua tive privilege).

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outweighs the public interest in prohibiting disclosure. In addition, the fact thatthe privilege is applied entirely within the discretion of the court leads to itsapplication on a case-by-case basis with the result that one court may reach theopposite conclusion as another court on identical facts. Therefore, theself-criticism privilege should not be relied upon alone to provide protectionfor peer review proceedings.

D. State Peer Review Privileges

In stark contrast to federal law, almost all states and the District of Columbiarecognize some type of peer review privilege.5 9 While at least one state courthas suggested that absent a statute, public policy might still dictate thatinformation regarding peer review proceedings not be admitted into court,60

most state privilege protections flow from statutory law. Despite almostuniversal mention of peer review privilege, there is extremely wide variationin the privilege granted by the states. The variation focuses on the types ofentities61 granted privilege protection, whether such protection is offered forall judicial and administrative proceedings and the scope of the protectiongranted.

1. Health Care Entity Proceedings Granted Protection

State statutes vary significantly in the types of health care facilities grantedpeer review privilege protection. Most states protect peer review performed byhospitals. Once outside the hospital context, there is broad variance in whattypes of entities are offered protection for peer review activities. Some statesoffer protection to peer review conducted by free-standing surgical centers andhealth maintenance organizations.62 A very few offer protection to third partypayers.63

59The chart following this Article summarizes the state peer review statutes and the

protections afforded participants and proceedings.

60Bay Medical Center v. Sapp, 535 So. 2d 308,311 (Fla. App. 1988) (citations omitted).6 1Committees performing peer review functions, which may include utilization

review and credentialing, governing boards, administration, and all varieties of healthcare facilities, have been given statutory protection in some form. Individuals associatedwith these entities, as members, employees, agents, and advisers, are also typicallyincluded and given immunity from civil and/or criminal liability from damages and/orsuit.

62 For example, Delaware's peer review statute protects any committee appointed byan HMO to perform quality review and makes the records and proceedings of such acommittee confidential and privileged. Kentucky's peer review statute provides similarprotection for HMOs. Louisiana's peer review statute protects and makes confidentialrecords of peer review committees of free-standing surgical centers, HMOs, and groupmedical practices of 20 or more physicians.

63Kentucky includes review by health insurers within its peer review statute.

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Similarly there is little consistency about the type of information grantedprotection at the facilities mentioned in the state statutes. For instance, Arizonalaw broadly offers protection to review of professional privileges performedby hospitals,64 while Ohio law provides protection only for utilization, qualityassurance, and tissue committees and hospital boards and committeesreviewing professional qualifications or activities of the hospital medical staffor applicants for admission to the staff.65 Therefore, the Arizona statute wouldoffer protection to all hospital review of professional privileges, however thatreview is done, and would include review performed by departments,department chairmen and otherwise. Ohio's statute, in contrast, only protectsthe proceedings of specific committees and the hospital board.66 The protectionafforded by Arizona, however, appears to be limited to traditional review ofprofessional credentials review, while the Ohio statute more broadly coversongoing review by named committees of any medical staff activities. Most ofthe case law in the area of peer review centers around the issues of what is

6 4 ARIZ. REV. STAT. ANN. § 36-445.01 (1993). In a recent case, Yuma Regional MedicalCenter petitioned the Arizona Court of Appeals on the sole issue of whether it wasrequired to produce certain requested information. The medical center argued that toprovide the information would violate the peer review privilege conferred by §36-445.01(A), which provides in pertinent part: "All proceedings, records and materialsprepared in connection with the reviews provided for in § 36-445, including all peerreviews of individual health care providers ... and the records of such reviews, shallbe confidential and shall not be subject to discovery .... Discovery of the names ofparticipants in the peer review proceeding and a list of written or documentary itemssubmitted to the committee were sought. On both issues, the court found that theplaintiffs were trying to "thwart" the privilege and held that neither type of informationwas discoverable. The court specifically held:

The peer review privilege, A.R.S. § 36-445 et seq., protects from disclosurethe names of the participants in a peer review proceeding as well as thelisting of any written or documentary items submitted to the peer reviewcommittee. Such information is inherent in the privilege as indicative of the"discussions, exchanges and opinions" of the committee.

Yuma Regional Medical Center v. Superior Court, 852 P.2d 1256, 1262 (Ariz. Ct. App.1993) (emphasis added).

6 5 OHIo REV. CODE ANN. § 2305.251 (Anderson 1991).

6 6 Interestingly, and of great concern to hospital governing boards in Ohio, the OhioSupreme Court rejected a hospital's argument that certain information fell within thepeer review privilege. The Court was presented with a negligent credentialling claimthat was brought after traditional interpretations of the applicable statute of limitationsfor such actions. The Court specifically found that the hospital was not involved in theprovision of information or participation on a peer review committee and therefore notentitled to the immunities of OHIO REV. CODE § 2305.25. The Court also dismissedwithout meaningful discussion the hospital's protest that it would be unable to defenditself due to the prohibition of OHIO REV. CODE § 2305.251, which generally prohibitsdisclosure of peer review committee proceedings and records. The Court stated thatinformation from other sources would beavailable to the hospital, ignoring the fact thatthe very information it would need to defend itself against the negligent credentiallingclaim involves the type and extent of peer review conducted by the hospital and itsmedical staff. See generally Browning v. Burt, 613 N.E.2d 993, 1006 (1993).

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covered by the privilege and what is not covered, creating a crazy quilt effectamong the states.67 If the policy reasons for granting privilege to peer reviewinformation exist, i.e., encouraging open and effective peer review to ultimatelyincrease the quality of medical care rendered, then this reason should existwhether the peer review is conducted by a hospital, ambulatory surgery center,an alternative delivery system, or other health care entity and regardless of howit is performed within the institution. With the advent of credentiallingdecisions being made by alternative delivery systems, extension of theprivilege to this setting may be important.68 While many credentiallingdecisions at the third party payer level are not being made by peers but by theadministration of the third party payer, protection of this credentiallinginformation may be useful to encourage such review to be performed at all.Currently if the information is not protected there may be a tendency for thirdparties not to engage in the review for fear of retaliation by health careprofessionals.

2. Scope of Privilege

There is wide variation by the states as to the scope of privilege. Whilegenerally the privilege extends to civil actions, some states limit theapplicability of the privilege even in civil actions. Some states extend theprivilege to criminal and administrative actions, as well as civil actions.

a. Civil Actions

Some states, such as Alabama and California, offer broad privileges for civilactions; peer review records are simply not admissible or discoverable in civilactions. 69 Other states such as Arizona start out by offering similarly broadprotection, but then carve out large exceptions which provide that theinformation may be obtained in actions by staff members against the entityconducting the peer review for improper limitation of privileges.70

6 7 See, e.g., John C. Lincoln Hosp. and Health Ctr. v. Super. Ct. of Ariz., 768 P.2d 188(Ariz. Ct. App. 1989); Murphy v. Wood, 667 P.2d 859 (Idaho Ct. App. 1983); Lomano v.Cigna Healthplan of Columbus, Inc., 582 N.E.2d 1150 (Ohio Ct. App. 1990), appealdismissed, 613 N.E.2d 1075 (1992); Community Hospitals of Indianapolis, Inc. v.Medtronic, Inc., 594 N.E.2d 448 (Ind. Ct. App. 1992); Weiner v. Memorial Hosp. forCancer & Allied Diseases, 453 N.Y.S.2d 142 (N.Y. Sup. Ct. 1982); Tyes v. St. Luke's Hosp.,1993 Ohio App. LEXIS 5735 Ohio Ct. App., Cuyahoga County Dec. 2, 1993); Cruger v.Love, 599 So. 2d 111 (Fla. 1992).

68 At least 12 states at this time specifically include peer review by entities such asHMOs, PPOs, and other health care delivery systems in their peer review statutes.

6 9 ALA. CODE § 6-5-333 (1991) (limited to civil practice); CAL. Bus. & PROF. CODE § 805(West Supp. 1994); CAL. EVID. CODE §§ 1156, 1157 (West Supp. 1994) (no distinctionbetween civil and criminal matters; peer review proceeding materials are notdiscoverable or admissible in any court action or any administrative proceeding).

70ARIz. REV. STAT. ANN. § 36-445.01 (1993).

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A relatively large number of states-Arkansas, Connecticut, 71 Florida,Georgia, Maryland, Minnesota, North Carolina, North Dakota, Ohio,Pennsylvania, Vermont and West Virginia-provide only that the informationshall not be discoverable or admissible in actions arising out of the subject ofreview by the committee.72 The information would therefore be protectedagainst disclosure in actions brought against the entity for the peer reviewprocess, but it is questionable whether the information would be protectedfrom discovery in malpractice actions unless the particular alleged error oromission generating the malpractice action was the subject of the peer reviewmeeting. A Florida appeals court permitted discovery of peer review recordsfrom one hospital in a malpractice case arising at a second hospital holding:

[W]here the circumstances giving rise to the suit were the very onesconsidered in the committee evaluation, the documents andtranscribed proceedings of the said committee hearings are precludedfrom discovery But if the subject matter of the suit and the subject ofthe medical review committee evaluation are not the same, the statutedoes not apply.

73

b. Criminal Actions

Some of the states that offer the peer review privilege in civil actions alsooffer the privilege in criminal actions. Pennsylvania and Rhode Island bothprovide that members and employees who furnish information or participatein the peer review process will not be found to have violated any criminal law.The Utah statute simply provides that participants will be immune fromliability. Most states simply state that the immunity of individual participantsis from civil damages or suits.

71The Connecticut peer review statute does not protect the discovery of facts; thestatute provides that the fact of restrictions or termination of privileges can be disclosedin a civil action, together with the nature of the restrictions.

72 1n contrast, 19 states expressly recognize an exception to the peer review privilegeand allow discovery of peer review information when the physician under investigationbrings a civil action to challenge the peer review outcome. These states are: Alabama,Arizona, California, Colorado, Idaho, Indiana, Iowa, Kansas, Louisiana, Mississippi,Missouri, New Hampshire, New Mexico, Oregon, Rhode Island, South Carolina, SouthDakota, Washington, and West Virginia. Although West Virginia alsoprovides thatpeerreview information is not to be available for use in actions arising out of the peer reviewactivity, it allows use of the information in judicial actions reviewing the peer reviewoutcome, but specifically provides that the court "shall enter such protective orders asmay be appropriate to provide for the confidentiality of the records provided the court.." W. VA. CODE § 30-3C-3 (1993).

73 Segal v. Roberts, 380 So. 2d 1049,1052 (Fla. Dist. Ct. App. 1979), cert. denied, 388 So.2d 1117 (Fla. 1980).

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With respect to the proceedings themselves and the information acquiredand produced as a result of the peer review process, eight states74 provide thatthe peer review records and proceedings are not subject to discovery, use oradmissible into evidence in any action of any kind, which appears to provideprotection from use in civil, criminal, and administrative proceedings. The peerreview protection statutes in five states 75 provide that such information is notavailable for discovery or subpoena, leading to the conclusion that theinformation is not available for criminal, civil or administrative matters. Untilthe statutes have been judicially construed, the facial interpretation points tothe protection of peer review information in these states in civil, criminal, andadministrative proceedings. It is certainly understandable that, as a matter ofpublic policy, the states would be more restrictive in granting privileges incriminal actions.

c. Administrative Actions

The states are split about whether peer review information can be admittedinto evidence in administrative actions. A number of state statutes specificallyprovide that peer review information is not available to licensing bodies inadministrative actions, while a number of states take an opposite approach andspecifically do permit the information to be admitted in licensing actions. Atleast one court has interpreted a statute which provided for judicial privilegenot to include a privilege for administrative proceedings. Since the advent ofthe HCQIA, arguably this distinction is less important, because any significantpeer review sanctions taken by hospitals as a result of peer review will bereported to state licensing agents and to the NPDB.

3. Waiver

The issue of waiver of peer review privilege is particularly interesting. Manyprivileges such as the attorney-client and physician-patient privilege providethat the privilege may be waived by one of the parties to the communication.Most of the states that provide a privilege for peer review information do notprovide any way in which the privilege may be waived.76 Without such astatutory waiver, it is unlikely that the court will permit the privilege to bewaived.

If the privilege is truly an institutional privilege, protecting the participantsin the process, then waiver, if permitted at all, should be exercised by theparticipants and not by the person who was the subject of the review. Despitethis, Nebraska provides for specific waiver of the privilege by the patient whoseinformation is being discussed in the peer review proceedings. Certainly the

74Idaho, Massachusetts, Michigan, Missouri, Montana, New Hampshire, South

Dakota, and Utah.7 5 Nebraska, Nevada, New Jersey, Rhode Island, and Tennessee.

76Six states offer a specific way in which to waive the statutory privilege orconfidentiality provided in the peer review statute.

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patient is not going to be particularly interested in the sanctity of the peerreview process, but will be more concerned about his or her feelings about thephysician or how release of the information may impact any pendingmalpractice action. Permitting the patient to waive the privilege may render italmost meaningless. New Hampshire appears to understand the rationalebehind the privilege and permits the hospital board to waive the hospital peerreview privilege. Texas, similarly, allows the peer review committee to waivethe privilege of confidentiality; however, the waiver must be in writing andsigned by the committee chair, vice-chair, or secretary.77 Permitting the boardto waive the privilege may not provide particular comfort for the physicianson the medical staff who have participated in peer review proceedings and whoare expected to participate in such proceedings as part of their medical staffresponsibilities.

In a very interesting case, West Covina Hospital v. Superior Court,78 theCalifornia Supreme Court held that the California privilege statute, whichprovided that a peer review participant could not be required to testify about

peer review proceedings, did not preclude a participant from voluntarilytestifying as to the proceedings. The court reasoned that the privilege statutewas to protect physician's time from being burdened with required testimony.The court further reasoned that if a physician volunteered to testify, then thephysician obviously chose to bear the burden of testifying. Obviously,interpretations such as West Covina would render absolutely meaningless whatpeer review privilege protection exists as physicians would always beconcerned that one of the participants would choose voluntarily to disclose theproceedings. 79

If the policy reasons for the peer review privilege exist, the states do notappear to be successful in advancing those policies. Participants in the peerreview process are generally not guaranteed that they will not be called totestify against a colleague about what transpired in peer review in some futureaction. Some commentators have, however, argued that the privilege isunnecessary.80 If the true fear of peer review participation is the "potential fearfelt by the reviewer that participation in an adverse recommendation will lead

77 The Texas statute also allows any individual or entity who participated in peerreview and who is then named as a defendant in a civil action to use otherwiseconfidential information to present a defense to the charges. The plaintiff is then alsoentitled to disclose records or other peer review information to rebut the informationsupplied by the defendant. TEX. REV. CIV. STAT. ANN. art. 4495b, § 5.06(j) (West Supp.1994).

78718 P.2d 119 (Cal. 1986).

79 Perhaps for this reason many state peer review statutes provide that individualmembers or advisors to peer review committees will not be required or permitted totestify as to what transpired at the committee meetings or any of its deliberations.

80See Goldberg, suipra note 5.

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to a lawsuit against him or her personally,"81 peer review immunity statutesshould protect against such suits and privilege statutes should not be necessaryfor such protection. "Regrettably, the widespread adoption of the privilegecannot be justified in view of its limited benefits and its adverse impact upona patient's ability to show negligence.' 82

V. CONFIDENTIALITY

Confidentiality and privilege are two compatible, yet distinct, concepts.Privilege addresses a person's right not to have another testify as to certainmatters as part of a judicial process, while confidentiality addresses theobligation to refrain from disclosing information to third parties other than aspart of legal process. Confidentiality may be imposed by law or by agreement.In many cases, if there is a privilege against testifying, there is also arequirement to keep information confidential; for instance, many states whichrecognize the attorney-client privilege or physician-patient privilege alsoprovide that the attorney or physician can be subject to state license disciplinaryaction for willful betrayal of a professional confidence. 83 This is, however, notthe case with all privileges. For example, although the spousal privilegeprevents one spouse from testifying against another regarding certaincommunications, a spouse is not required by law to keep all spousalcommunications confidential outside of the judicial context. Indeed tabloids

and other publications might not survive if it were not for the telling of spousalsecrets. The only recourse of a spouse against another for telling secrets may

be to stop talking to the spouse or divorce.In the case of peer review, voluntary revelation of peer review findings may

be particularly damaging to the process. As discussed previously with respect

8 1 Scibetta, supra note 5, at 1033.8 2 1d. See also Clark C. Havighurst, Professional Peer Review and the Antitrust Laws, 36

CASE W. RES. L. REV. 1117, 1118 (1986), in which Professor Havighurst concludes that"[e]ncrusting the law with special exceptions forprivileged groups or special treatmentfor particular activities is a poor approach precisely because it relieves courts of thenecessity to rethink basic antitrustdoctrine to makecertain that itfrustrates onlyconductthat is truly incompatible with competition and consumer welfare."

For the view of the judiciary finding the privilege inappropriate, see also Ott v. St.Luke Hosp. of Campbell County, Inc., 522 F. Supp. 706 (E.D. Ky. 1981), in which thecourt held that there was no showing that the hospital peer review committees'functions

would be substantially impaired by denial of the privilege. Indeed, thetrue efficacy of such committees may be fostered by an atmosphere ofopenness, in that they may be less likely to rely on hearsay or informa-tion tainted by bias or prejudice in making their decisions, if the under-lying reasons therefor can be required to be disclosed in a proper case.

Id. at 711.8 3 For example, Ohio's Medical Practice Act, OHIO REV. CODE Ch. 4731, provides that

"[wlillfully betraying a professional confidence..." constitutes grounds for disciplineby the state medical board. OHIo REV. CODE ANN. § 4731.22(B)(4) (Anderson Supp. 1992).

[Vol. 7:169


to the West Covina case, the ability of one participant in the peer review processto waive the privilege and disclose information from the proceeding withoutthe consent of the entire group or health care facility administration cuts at thevery basis of the concept-protection of certain information, usuallyconsidered in a committee setting and any decision or recommendation arisingfrom that committee review, from disclosure on the basis that individualparticipants will be more willing to participate openly and honestly if theircomments and recommendations are not made known outside the context ofthe proceeding.

A. State Law

Eighteen of the states that provide privilege protection to peer reviewinformation-Arkansas, California, Connecticut, Florida, Georgia, Hawaii,Kansas, Maryland, Mississippi, Missouri, Nebraska, Nevada, New Jersey, NewYork, Oregon, South Dakota, Virginia, and Washington 84-do not mention theconfidentiality of such information in the statute.85 Therefore, while theadmissibility of such information during judicial or administrative process willbe governed by the state law on privileges, the peer review participants are freeto voluntarily discuss peer review information as they choose. One way to helpensure that committee members keep any information confidential is to havethem individually agree to maintain confidentiality as one of their committeeresponsibilities. Medical staffs can also provide for confidentiality by includingsuch provisions in the medical staff bylaws and also obtaining appointees'specific agreement to abide by this provision at the time of appointment andreappointment to the staff as a specific condition of appointment.

Seventeen states-Arizona, Idaho, Illinois, Iowa, Kentucky, Maine,Massachusetts, Michigan, Minnesota, Montana, New Hampshire, NorthCarolina, Pennsylvania, Utah, Vermont, West Virginia, and Wyoming-and theDistrict of Columbia simply mention, in conjunction with granting a privilege,that the peer review information is to remain confidential. Since almost all thestates mention the confidentiality in the same clause as the description ofprivilege, 86 it could be argued that the confidentiality language actually appliessolely to thejudicial context and is part of the privilege granted, but is not meantto give rise to any actionable requirement that the peer review participants keepthe information confidential. If this is the case, thirty-five states grant little orno confidentiality protection to peer review proceedings. Even if this is not the

84 Refer to the chart following the text for statutory cites and a brief description of thestatutory provisions.

85Although there is no express discussion of "confidentiality" in the statute, thestatutes of Arkansas and Maryland title one section of the peer review statute"Proceedings and Records Confidential" and "Proceedings, Records and FilesConfidential," respectively.

86 For example, the Michigan statute states that information from review functionsperformed by review committees of hospital medical staffs is confidential and is notavailable by subpoena. MICH. COMp. LAWS§§ 333.21515, 333.21513(d) (1993).

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case, the statutes offer no sanction for violation of the confidentialityrequirement. Presumably, therefore, if participants in the peer review processsee fit to discuss the proceedings with, for example, third party payers, otherhealth care facilities, or the news media, they are free to do so without fear ofrecourse.

The peer review statutes of Alabama, Delaware, Louisiana, North Dakota,and Ohio all provide that peer review information is to remain confidential andonly be used in the exercise of proper functions of the committee. This languageat least implies that the reference to confidentiality is not meant to be limitedto judicial privilege and that there is an affirmative obligation to keep theinformation confidential. Alaska broadly provides that all information anddata of a peer review committee may not be disclosed to anyone.

A number of states provide that peer review information is to remainconfidential and provide specific instances when the information may bereleased. For example, Indiana permits release to other peer review andprofessional organizations as well as state disciplinary boards; South Carolinapermits the professional who is the subject of review to authorize the releaseto third parties; Tennessee permits the information to be used as advocacy forthe professional before other peer review bodies; and Texas permits a judge toauthorize the disclosure in an anti-trust action.87 Colorado, while stating thatpeer review information is to remain confidential, affirmatively permits thevoluntary release of all such information, provided there are no patientidentifiers. Penalties for unlawful disclosure are imposed by only 2 of the statesidentified above-Alabama and Minnesota.8 8

New Mexico, Ohio, Rhode Island, Texas, and Wisconsin are the only stateswhich appear to fully appreciate the concept of confidentiality as distinct fromprivilege and provide sanctions for peer review participants' failure to keepthe information confidential. Both New Mexico and Rhode Island providecriminal sanctions for violation of the confidentiality requirement and provide

8 7This would imply that the confidentiality provision is not meant as a separate legalrequirement but applies only to the privilege from admission in judicial proceedings.

88 1n all, only 6 states provide penalties for violation of statutory peer reviewconfidentiality requirements-Alabama, Minnesota, New Mexico, Rhode Island, Texas,and Wisconsin. In addition, Ohio allows a right of action against a member of autilization or quality assurance committee, "similar to that a patient may have againstan attending physician for misuse of information, data, reports, or records arising outof the physician-patient relationship .... for misuse of information, data, reports, andrecords furnished to the committee by an attending physician." OHiO REV. CODE ANN.§ 2305.24 (Anderson 1991). This provision has not been judicially interpreted, but itwould not appear to apply to information reviewed or generated by a peer reviewcommittee since the following statutory section, § 2305.25, discusses separately qualityassurance and peer review committees. Section 2305.24 defines "utilization committee"as "the committee established to administer a utilization review plan of a hospital...."If peer review were included as a function of the utilization review plan, then arguablythe cause of action provided for misuse of information provided to utilizationcommittees would also apply to misuse of information provided to peer reviewcommittees.

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for fines and potential jail sentences. Ohio and Wisconsin expressly permit civildamage actions against those breaching the confidentiality requirements.8 9

It is interesting to note that the existence of sanctions for violation ofconfidentiality may actually discourage active peer review participation if aparticipant realized he or she could later be subject to sanctions for revealingwhat was known about the process. Presumably, however, participants in theprocess are used to protecting patient confidences and are comfortable with thenotion of confidentiality.

A review of the case law on peer review revealed almost no interpretationof peer review confidentiality status. The West Covina case discussing thepermissibility of voluntary testimony even in the face of a privilege statute wasthe sole case to address the issue of participants voluntarily revealing peerreview information.

B. Federal Law

Public demand for physician accountability led to the enactment of HCQIA,which resulted in the establishment in 1990 of the NPDB. Pursuant to HCQIA,the following must be reported to the NPDB: certain adverse actions regardingmedical staff membership or clinical privileges taken by hospitals and otherhealth care providers which engage in peer review activities; adverse actionstaken by professional review societies regarding their members; payments oncertain malpractice claims; and adverse actions taken by state licensing boards.Information submitted to the NPDB later may be obtained by the following:hospitals acting upon medical staff membership or clinical privileges; otherhealth care providers which engage in professional review activities or contractwith health care professionals; health care professionals regarding themselves;state licensing boards; and, in very limited circumstances, parties tomalpractice actions.

The NPDB regulations provide that any person or entity which receivesinformation directly or indirectly from the NPDB must consider suchinformation confidential and use the information solely with respect to thepurpose for which it was provided; however, nothing prevents disclosure ofinformation which is "authorized" under applicable state law. Violations of thisconfidentiality regulation are subject to a civil monetary penalty of up to$10,000 for each violation. 90 As shown, a great number of states do not requireconfidentiality of peer review information. The lack of a confidentialitymandate however, arguably does not "authorize the release of suchinformation." Therefore, to be safe, health care providers should maintain theconfidentiality of NPDB information. Outside of the NPDB information,

89Remember that Ohio's cause of action appears to be limited to misuse ofinformation provided to a utilization review or quality assurance committee by anattending physician. OHIO REv. CODE ANN. § 2305.24 (Anderson 1991).'

9045 C.F.R. § 60.13(a).

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however, HCQIA does not give rise to any federal law requirement that peerreview information remain confidential.

VI. MAXIMIZING WHAT LIMITED PEER REVIEW PROTECTION EXISTS

Health care providers when faced with performing peer review must beconcerned with maximizing what limited peer review protection exists. Clearlythe first step is for the provider to understand the peer review privilege andconfidentiality statutes as they exist in the provider's state. For peer reviewprivilege, if a court orders discovery of peer review records, there is little aprovider can do once the provider has challenged the court's order and lost.The planning to maximize the peer review privilege statutes, to the extent thatthey exist, must arise prior to the request for documents. Clearly, a health careprovider should understand the statute in that state, and tailor the peer reviewactivities in that state to the statue. For instance, if the statute only grants peerreview privilege protection to proceedings of certain committees, the hospitalshould provide in its bylaws that peer review is only performed by thosecommittees. All administrative and departmental review and other peer reviewactivities should take place as part of the committee process and not as anindependent process. Any peer review proceeding or meeting of a peer reviewcommittee should be kept strictly confidential. Any minutes or documentsgenerated as a result of that meeting or proceeding should be clearly labeledas peer review materials and maintained in a secure place. Peer reviewfunctions should be clearly described in any statements of policies orprocedures identifying committee duties so that no question can be raised thatthe entity performing the peer review activity was acting within its properauthority and therefore entitled to any available protections. Such policies andprocedures should include a description of the types of information that canbe disclosed without violating the statutory confidentiality requirements, suchas the facts underlying the investigation or the fact that an investigation istaking place or has taken place and any resulting restrictions on privileges orthe termination of privileges and staff appointment.

With respect to peer review performed by entities for which there is nostatutory protection, these entities could attempt to "piggy back" onto the peerreview performed by protected entities. For example, a provider-controlledpreferred provider organization may wish to rely upon hospital peer reviewrather than performing independent peer review.

Similarly to protect the confidentiality of peer review proceedings, all healthcare providers should contractually provide that peer review participants willkeep the information confidential. Hospital bylaws should provide that it is arequirement of sitting on the medical staff that physicians who participate inpeer review keep all information confidential, and it would be advisable as partthe appointment process to any peer review committee that each participantsign an agreement to keep the information confidential. This gives rise to acontractual claim for breach of contract should any participant breach theconfidentiality and voluntarily testify or divulge peer review information.Such contractual provisions, however, would in all probability only be able tobe enforced by the health care provider securing the agreement and not byother participants in the peer review process. Therefore, should a peer reviewparticipant violate the confidentiality of the process and reveal information

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which is damaging to another participant in the proceeding, but not damagingto the health care facility itself, it is questionable whether or not that damagedparticipant would have a cause of action against the individual who breachedthe confidentiality, unless such argument was on some type of third partybeneficiary claim. Health care facilities performing peer review may, therefore,want to consider contractually obligating all parties in a manner in which eachparty to the contract would have a cause of action against any other party.

Of course, seeking and entertaining statutory changes is also a free course tohealth care providers who determine that sufficient peer review protectiondoes not exist in their state. In the meantime, current laws are subject toconflicting interpretation by courts on nearly identical facts. While a health carefacility cannot be absolutely certain that its peer review activities will withstanda court's scrutiny, the best approach is to continue to fulfill its peer reviewobligations, as required by state and federal law, as well as accreditationorganizations, and to treat all peer review activities and attendant records andinformation, including deliberations and work product, of any meetings andproceedings as highly confidential. Communicating both the importance ofmaintaining confidentiality to preserve the effectiveness of the process and thepotential liabilities for both individual participants and sponsoring entities willencourage the observance of a high degree of confidentiality by thoseparticipating in the process. Adding bylaw provisions and requiring separateagreements of physicians to maintain the confidentiality of any peer reviewproceedings and materials will help ensure that health care entities, and thoseindividuals performing peer review functions for them, will be in a position toargue for the greatest protections available under applicable law for peerreview information.

1992-93]

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Documents